Letter to IDF JAG on Investigation into Deaths of Four Civilians

Brig.-Gen. Avichai Mandelblit

Judge Advocate General

Israel Defense Forces

Dear Brigadier-General Mandelblit,

We are writing to request information about the status of the investigation that the Israel Defense Forces (IDF) has announced it is conducting into the deaths of four civilians, including a Reuters cameraman and two teenage boys, in Gaza on April 16, 2008.

On that day, shortly after 5 p.m., an IDF tank outside of Johr al-Diek fired a shell that killed Fadel Shana'a, 23, a Reuters cameraman, along with Ahmad `Aref Farajallah, 14, Khassan Khaled `Otaiwi, 17, and Khalil Isma'il Dughmosh, 22. The GPS coordinates of the attack site are 000-94-748E, 010-96-252N. Video footage taken from Fadel Shana'a's camera shows the IDF tank firing a shell in his direction and the film going black shortly thereafter. Accounts of eyewitnesses and medical X-rays show that all four were killed by flechettes released from the tank shell.

Human Rights Watch interviewed three witnesses to the day's events, including Shana'a's colleague and soundman, Wafa Abu Mizyed. Their accounts, as well as video footage taken by Shana, are consistent in indicating there was no fighting in the immediate area of the attack at the time. Mr. Shana'a's vehicle, a small unarmored gray pick-up truck clearly marked "TV" and "Press," had reportedly twice driven past the tank just prior to the attack, suggesting that the tank crew had the opportunity to identify the vehicle and its occupants as civilian.

According to these witnesses and other persons in the area, there had been no clashes between IDF forces and armed Palestinian fighters in this immediate area, although there had been clashes earlier in the day and over a kilometer and half away from this incident, in Johr al-Deik.

In initial remarks on April 21, an IDF spokesperson stated that the IDF would initiate a "field investigation" into the incident. A spokesperson subsequently said that your office would review the results of this investigation.

It is our understanding that an IDF "field investigation" relies on the statements of officers and soldiers in the unit concerned and does not seek additional accounts or evidence, including evidence from the scene of the incident, testimony from local eyewitnesses, or medical reports or autopsies on those killed and injured. As such, a "field investigation" cannot be regarded as a genuinely thorough or impartial investigation.

International humanitarian law (IHL) regulates the methods and means of combat in Gaza. As you know, it requires that armed forces distinguish at all times between combatants and civilians, and do everything feasible to verify that targets are military objectives. Deliberate attacks on civilians, as well as attacks that do not discriminate between combatants and civilians, or cause disproportionate harm to civilians, are prohibited. Only civilians directly participating in hostilities may be deliberately subject to attack.

States have an obligation under IHL to investigate serious violations of IHL allegedly committed by their forces. A thorough, impartial, and timely investigation is an essential step for holding members of an armed force accountable to enforce discipline, maintain responsible command, and ensure compliance with IHL. Investigations carried out whenever there are civilian deaths are important for minimizing preventable or unjustifiable civilian casualties in the future. Such investigations are necessary when there are credible allegations of serious violations of IHL, including possible reckless or deliberate killings of civilians.

Israel's High Court has ruled that the IDF must investigate alleged wrongdoing by its forces as part of its obligation, under article 43 of the Hague Regulations, to maintain law and order in the Occupied Palestinian Territories. Article 146 of the Fourth Geneva Convention requires an occupying power to investigate possible "grave breaches" of the convention. Grave breaches, as enumerated in article 147, include, among other things, willful killing or willfully causing great suffering or serious injury to body or health. Customary international law further obliges states to investigate alleged violations of the prohibition against deliberately targeting individual civilians not taking a direct part in hostilities, and launching attacks causing indiscriminate or disproportionate civilian loss.

Human Rights Watch's research into IDF investigations and prosecutions between 2000 and 2005 found that Israel's military investigative practices and procedures were neither thorough, impartial, nor timely. We found that the core of the problem was the system of "field investigations," which rely entirely on soldiers' own accounts as the threshold for determining whether a serious investigation is warranted. Field investigations may serve useful military purposes, but they are inadequate to determine whether there is evidence of a violation of IHL.

In the past, reliance on "field investigations" has served as a pretext for claiming, wrongly, that Israel had undertaken a proper investigation.

As such, we urge your office to promptly open a thorough and impartial investigation into the April 16 deaths of Fadel Shana'a, Ahmad `Aref Farajallah, Khassan Khaled `Otaiwi, and Khalil Isma'il Dughmosh. We also urge you, if warranted by the results of the investigation, to prosecute any persons found to be responsible for serious violations of IHL. Finally, we request that you make the results of the investigation public.

We look forward to learning from your office how it plans to investigate this serious matter.